Harding v. Harding , 2016 Ohio 7028 ( 2016 )

[Cite as Harding v. Harding, 2016-Ohio-7028.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CATHERINE IRENE HARDING C.A. No. 27464
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DOUGLAS PAUL HARDING, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 2012-03-0823
DECISION AND JOURNAL ENTRY
Dated: September 28, 2016
CARR, Presiding Judge.
{¶1} Plaintiff-Appellant, Catherine Harding (“Wife”), appeals from the judgment of
the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I.
{¶2} Wife and Defendant-Appellee, Douglas Harding (“Husband”), were married in
May 1987 and had three children during the course of their marriage. Throughout the marriage,
Husband and Wife both developed their own careers. Wife ultimately became the owner and
manager of a hair salon in Hudson. Meanwhile, Husband ultimately became the second largest
shareholder of The Robbins Company (“TRC”) while also acquiring interests in several affiliated
organizations. With his earnings, the parties were able to purchase the hair salon business for
Wife, as well as a one-third portion of the real estate holding company that owned the building in
which the salon was located. They also were able to enjoy a very comfortable standard of living
with their three children, all of whom are now adults.
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{¶3} In March 2012, Wife filed a complaint for divorce against Husband and also
named as defendants numerous business entities in which either she, Husband, or both she and
Husband possessed an interest. Of particular concern to the instant appeal, Wife named as
defendants TRC, Robbins International, Inc. (“Robbins International”), Boretec Properties, Inc.
(“Boretec”), LDDJ, LLC (“LDDJ”), and Robbins Holdings, LLC (“Robbins Holdings”)
(collectively, “the Defendant Companies”). TRC is a privately owned, international corporation
that manufactures tunnel boring machinery. Robbins International is a separate corporation, but
one that TRC established for the purpose of conducting its sales so as to reap certain tax
advantages for itself and its shareholders. Meanwhile, Boretec, LDDJ, and Robbins Holdings
are all real estate investing companies from which TRC leases various buildings for its
operations. There is no dispute that Husband owns shares or units of interest in all five of the
foregoing companies.
{¶4} Husband answered Wife’s complaint for divorce and also filed a counterclaim for
divorce. Meanwhile, the Defendant Companies jointly filed an answer. Following a lengthy
period of discovery and motion practice, the matter went to trial. Husband and Wife largely
agreed on how to split their assets and Husband’s interests in Boretec, LDDJ, and Robbins
Holdings, but disagreed as to how to divide his shares and stock options in TRC, as well as
certain promissory notes that he received from TRC. The trial court heard significant valuation
testimony and evidence, but ultimately declined to value Husband’s interests in TRC. Instead, it
ordered an equal division of Husband’s interests, with Wife receiving one half of his shares,
stock options, and promissory notes. The court also divided the remainder of the parties’ assets
and liabilities and entered a judgment of divorce.
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{¶5} Wife now appeals from the trial court’s judgment and raises five assignments of
error for our review. For ease of analysis, we combine several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT DENIED WIFE’S MOTIONS TO
COMPEL DISCOVERY FROM HUSBAND AND FROM HUSBAND’S
COMPANIES.
{¶6} In her first assignment of error, Wife argues that the trial court erred by denying
her motions to compel the discovery of certain financial records from Husband and the
Defendant Companies. She argues that the court’s refusal to order Husband and the Defendant
Companies to provide her with the financial information she sought made her “unable to put
forth a strong claim at trial.”
{¶7} “[C]ourts have broad discretion over discovery matters.” State ex rel. Citizens for
Open, Responsive & Accountable Govt. v. Register, 116 Ohio St. 3d 88, 2007-Ohio-5542, ¶ 18.
As such, this Court “reviews a trial court’s disposition of discovery matters for an abuse of
discretion.” Lampe v. Ford Motor Co., 9th Dist. Summit No. 19388, 2000 WL 59907, *3 (Jan.
19, 2000). An abuse of discretion implies that a trial court was unreasonable, arbitrary or
unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). As a
reviewing court applying the abuse of discretion standard, we may not substitute our judgment
for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
{¶8} Wife filed several motions to compel in this matter. On February 15, 2013, she
filed a motion to compel Husband to “fully respond” to her interrogatories, requests for
admissions, and requests for the production of certain documents. She indicated that she found
Husband’s previous responses inadequate and alleged that he had failed to produce financial
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records that would allow her to value his interests in the Defendant Companies. Similarly, on
August 30, 2013, she filed a motion to compel the Defendant Companies to provide more
complete responses to her discovery requests. That same day, Wife filed a motion asking the
court to rule on her February 15th motion to compel Husband to respond to her requests. She
also later filed amendments to her memorandums in support of her motions to compel.
{¶9} According to Wife, the parties came before the court for a pretrial in September
2013 and, at that time, the court declined to rule on her outstanding motions to compel. She
avers that the court told her to limit her discovery request to ten items that Husband and/or the
Defendant Companies could readily produce so that the matter could proceed to trial as
scheduled. Yet, the record does not contain a transcript of the September 2013 pretrial or any
ruling from the court, limiting Wife’s discovery requests in the aforementioned manner. Even
assuming, as Wife suggests, that no court reporter was present at the September pretrial, Wife
had the ability to provide this Court with a statement of the evidence or proceedings if no
transcript was available. See App.R. 9(C). This Court’s review on appeal “is restricted to the
record provided by the appellant * * *.” Bank of Am., N.A. v. Wiggins, 9th Dist. Wayne No.
14AP0033, 2015-Ohio-4012, ¶ 13, quoting State v. Browne, 9th Dist. Wayne No. 01CA0056,
2002-Ohio-2434, ¶ 6. Wife cannot demonstrate error by referring to matters that do not appear
in the record. See, e.g., Swedlow v. Riegler, 9th Dist. Summit No. 26710, 2013-Ohio-5562, ¶ 14-
16. Rather, this Court must presume regularity in those matters. See No-Burn, Inc. v. Murati,
9th Dist. Summit No. 25495, 2011-Ohio-5635, ¶ 22, quoting State v. Jones, 9th Dist. Summit
No. 22701, 2006-Ohio-2278, ¶ 39.
{¶10} The trial court never expressly ruled on Wife’s motions to compel, so we presume
that it denied them. Kostelnik v. Helper, 96 Ohio St. 3d 1, 2002-Ohio-2985, ¶ 13 (“A motion not
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expressly decided by a trial court when the case is concluded is ordinarily presumed to have been
overruled.”). The trial in this matter began on May 7, 2014, and lasted for several days. At no
point in time during the trial did Wife renew her motions to compel or indicate that she did not
have access to necessary documents. See Raykov v. Raykov, 9th Dist. Summit No. 26107, 2012-
Ohio-2611, ¶ 24. The parties introduced a wealth of financial information and were largely able
to agree on how to divide their assets. Wife never asked for a continuance to review any of the
information Husband introduced and never identified any particular item(s) without which she
could not make her case. If Wife believed that there were outstanding issues with discovery, it
was her duty to bring those matters to the trial court’s attention for resolution. See King v.
Rubber City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 12. Because she
did not do so, Wife cannot now complain that the trial court erred by not granting the motions
she filed the year before the trial. Wife has not shown that the trial court erred by not granting
her motions to compel. Accordingly, her first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S CONCLUSION THAT THE ROBBINS COMPANY
BEGAN EXPERIENCING A FINANCIAL CRISIS BEGINNING IN 2009,
WHICH ULTIMATELY LED TO THE COMPANY REFINANCING ITS DEBT
THROUGH AN AGREEMENT WITH CRYSTAL FINANCIAL, IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY FAILING TO DETERMINE THE VALUE
OF HUSBAND’S SHARES OF COMMON STOCK AND VESTED OPTIONS
IN THE ROBBINS COMPANY.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY REFUSING TO RECOGNIZE THE VALUE
OF THE PROMISSORY NOTES ISSUED BY THE ROBBINS COMPANY TO
HUSBAND AT FACE VALUE.
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ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER THE ROBBINS
COMPANY TO REPURCHASE ONE-HALF OF HUSBAND’S SHARES OF
COMMON STOCK AND STOCK OPTIONS, WHICH HUSBAND
TRANSFERRED TO WIFE.
{¶11} In her remaining assignments of error, Wife argues that the trial court erred in its
disposition of Husband’s interests in TRC. She argues that there was no support for the court’s
conclusion that TRC began experiencing financial difficulties in 2009. She further argues that
the court erred by not valuing Husband’s shares in TRC, by not valuing the promissory notes he
received from TRC at face value, and by not ordering TRC to repurchase the shares that the court
awarded her. Because all of the foregoing assignments of error are interrelated, we address them
together.
{¶12} “Our review of a trial court’s division of marital property is whether the trial court
abused its discretion in dividing the property, under the totality of circumstances.” Najmi v.
Najmi, 9th Dist. Lorain No. 07CA009293, 2008-Ohio-4405, ¶ 23. “Since a trial court has broad
discretion in the allocation of marital assets, its judgment will not be disturbed absent an abuse of
discretion.” Neville v. Neville, 99 Ohio St. 3d 275, 2003-Ohio-3624, ¶ 5. An abuse of discretion
implies that a trial court was unreasonable, arbitrary or unconscionable in its judgment.
Blakemore, 5 Ohio St. 3d at 219. As a reviewing court applying the abuse of discretion standard,
we may not substitute our judgment for that of the trial court. Pons, 66 Ohio St. 3d at 621.
{¶13} “In any divorce action, the starting point for a trial court’s analysis is an equal
division of marital property.” Daniel v. Daniel, 139 Ohio St. 3d 275, 2014-Ohio-1161, ¶ 7.
Moreover, “trial courts, when circumstances permit, should strive to resolve the issues between
[divorcing] parties so as to disassociate the parties from one another or at least minimize their
economic partnership.” Hoyt v. Hoyt, 53 Ohio St. 3d 177, 182 (1990). The Ohio Supreme Court
7
has recognized, however, that “some circumstances may warrant joint ownership after a divorce
and situations may evolve where joint decisions must be made.” Id. at 182-183. “[W]hile it is
desirable to bring finality to the parties’ marriage by dividing assets once and for all, doing so is
not possible in all cases.” Daniel at ¶ 13. “In these matters, trial courts must exercise their
fullest discretion.” Hoyt at 183.
{¶14} There is no dispute that TRC is a closed-corporation that consists of a handful of
shareholders. Husband acknowledged that he is TRC’s second-largest shareholder and owns
2,400 shares in the company, as well as 1,400 stock options. The company operates by way of a
closed-corporation agreement, which Husband signed in 1999. With regard to a transfer of a
shareholder’s shares, the closed-corporation agreement provides as follows:
[I]n the case of the attempted transfer or disposition of Shares in any voluntary or
involuntary manner * * *, including, but not limited to, passage or disposition
under judicial order [or] legal process, * * * [TRC] may purchase and the
Shareholder, purchaser or one to whom the shares passed or are disposed shall sell
all of their Shares of the Corporation pursuant to Sections 11 and 13 of this
Agreement.
Sections 11 and 13 of the agreement govern the repurchase price of shares and the manner in
which TRC will make payment on any repurchase. With respect to the repurchase price, the
agreement provides instructions for the determination of an “Agreed Value” that will “be the fair
market value of the stock * * *.”
{¶15} At trial, the parties introduced a significant amount of valuation testimony. Wife
relied upon the “Agreed Value” definition in the closed-corporation agreement to argue that she
should receive the fair market value of half of Husband’s shares and stock options. Meanwhile,
Husband proposed simply splitting the shares and options. He testified that he had asked TRC’s
Board of Directors to repurchase half of his shares and options, but they had declined his offer.
It was TRC’s position that the plain language of the closed-corporation agreement did not require
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it to repurchase transferred shares. Moreover, there was evidence that TRC was undergoing
financial strain.
{¶16} TRC’s financial statements evidence that TRC had the following net incomes in
the following years: (1) a net income of $11,304,618 in 2009; (2) a net income of $21,037,876 in
2010; (3) a net income of $3,575,512 in 2011; (4) a net income of $685,221 in 2012; and (5) a
net income of $16,962,932 in 2013. Clark Lubaski, TRC’s chief financial officer, testified that
TRC began experiencing financial difficulties after its successful year in 2010. TRC’s financial
statements confirm that, in September 2010, the company entered into a $65 million credit
agreement with KeyBank. The agreement was initially set to expire in September 2013, but
Lubaski confirmed that, in 2011 and 2012, TRC breached several of the financial covenants set
forth in its agreement with KeyBank. The breaches led to TRC’s outstanding debts with the
bank being reclassified as currently payable. Although TRC was able to enter into a forbearance
agreement with KeyBank, it had to agree to a multitude of financial restrictions. Additionally, it
had to agree to seek refinancing through a separate lender.
{¶17} Lubaski confirmed that TRC ultimately refinanced its debt with KeyBank by
entering into an agreement with Crystal Financial. TRC’s financial statements provide that TRC
signed a $57 million credit agreement with Crystal Financial in May 2013, a large portion of
which it used to satisfy its outstanding obligation to KeyBank. Part and parcel to the credit
agreement that TRC signed with Crystal Financial, each of TRC’s shareholders signed a separate
shareholder acknowledgement and agreement with Crystal Financial. As part of that agreement,
the shareholders agreed to forego any cash distributions or payments from Robbins International
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that exceeded their tax liabilities.1 They further agreed that they would automatically loan to
TRC their dividends and any other distributions they might otherwise receive in exchange for
TRC issuing them promissory notes that would be subordinated to the bank’s loan. Additionally,
the agreement (1) prohibited TRC/the shareholders from making any cash payments to
repurchase shares under TRC’s closed-corporation agreement, and (2) provided that any
outstanding amounts already owed in connection with such repurchases would be subordinated
to the bank’s loan.
{¶18} Lubaski testified that TRC hoped to be able to refinance and repay its loan to
Crystal Financial by September 2015, but that, when it did so, it would owe Crystal Financial a
facility extension fee in addition to the amount due on the loan. It was undisputed that the
facility extension fee would be $4 million if repaid before the end of September 2015, but would
increase steadily every few months if TRC was incapable of doing so. TRC’s financial
documents evidence that, if TRC could not repay the loan before January 2017, the extension fee
would be $20 million. Both Lubaski and several of the experts who testified at trial agreed that
TRC was in a financially precarious position due to the sizeable amount of debt that it owed.
The parties presented the court with different expert opinions as to whether TRC’s financial
outlook would improve in the future.
{¶19} Both Wife and Husband set forth expert testimony about the value of Husband’s
shares and stock options in TRC, as well as the value of the promissory notes that he received
from TRC as a result of the obligation to Crystal Financial. The valuation evidence varied
greatly. Although the face value of Husband’s promissory notes totaled more than $2.5 million,
1
Because Robbins International conducts TRC’s sales, TRC’s shareholders receive their
distributions and/or other cash payments from Robbins International rather than directly from
TRC.
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his expert testified that their actual value was closer to $1 million. The parties’ experts also
disagreed as to the value of Husband’s shares with their estimates spanning between $4,000 per
share to $522 per share. Even if his notes, shares, and options were valued at the lower end of
the spectrum, however, Husband testified that he did not have sufficient liquid assets to
compensate Wife for her interest in them, should he retain them. The parties had agreed to
divide equally Husband’s interests in Boretec, LDDJ, and Robbins Holdings, the proceeds from
the sale of their marital residence, their timeshare, and their investment accounts. Further,
Husband had agreed that Wife could retain outright her hair salon and their interest in the real
estate holding company that owned the salon’s building. Husband’s interests in his promissory
notes, shares, and stock options from TRC were the only significant assets that remained for the
court to divide.
{¶20} In its judgment entry, the trial court determined that TRC began experiencing
financial difficulties in 2009 and ultimately refinanced its debt structure through a credit
agreement with Crystal Financial. The court noted that TRC’s closed-corporation agreement
gave it the option to repurchase involuntarily transferred shares, but that it was not required to do
so. More importantly, the court noted that Husband’s interests in TRC had been subordinated to
Crystal Financial by virtue of the credit agreement and shareholder acknowledgement and
agreement that Husband had signed. The court found that Husband’s promissory notes from
TRC were not currently payable due to the agreements with Crystal Financial and that it was
unclear whether they would become payable in the future, given that TRC might require further
refinancing. The court further found that Husband did not have sufficient funds to pay Wife for
her marital portion of his interests. Consequently, rather than assigning a value to the
promissory notes or the shares and options for distribution, the court ordered (1) Husband to
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assign to Wife one-half of his interest in the promissory notes he received during the marriage,
and (2) TRC to transfer to Wife one-half of Husband’s shares and options. The court concluded
that the division would ensure that Wife would “receive certain payments only if [] Husband
receive[d] [them]” and would “receive an amount of gross income in dividends or interest equal
to Husband’s either in cash or notes.”
{¶21} Wife first argues that the court’s finding that TRC began experiencing financial
difficulties in 2009 is against the manifest weight of the evidence. She notes that TRC had its
most successful year in 2010 and that there was evidence that TRC had projected sizeable net
profits for the next few years. According to Wife, the court lost its way when it failed to
conclude that TRC “was and is projecting to be a profitable company.”
{¶22} When reviewing a trial court’s factual finding to determine if it is against the
weight of the evidence, a reviewing court
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of
justice that the [judgment] must be reversed and a new trial ordered.
Zaccardelli v. Zaccardelli, 9th Dist. Summit No. 26262, 2013-Ohio-1878, ¶ 7, quoting Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶ 20. Even if a trial court makes an incorrect
factual finding, however, the appellant must show “that the court’s erroneous factual finding
prejudiced [his or her] substantial rights.” Ulinski v. Byers, 9th Dist. Summit No. 27267, 2015-
Ohio-282, ¶ 29. Absent a showing of prejudice, the error will be deemed harmless. See id.
{¶23} The record does not support the trial court’s finding that TRC’s financial troubles
began in 2009. The evidence was that TRC breached several of its lender’s financial covenants
in 2011 and 2012, following an extremely successful year in 2010. TRC did not sign a
forbearance agreement with KeyBank until 2012 and did not enter into its credit agreement with
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Crystal Financial until 2013. Accordingly, to the extent the trial court found that TRC started
having financial troubles before 2010, that finding was incorrect. The issue is whether Wife was
prejudiced by the court’s incorrect finding. Id.
{¶24} There was evidence before the trial court that TRC breached its loan agreement
with KeyBank and, as a result, had to agree to more restrictive financial covenants and seek
refinancing. There also was evidence that the credit agreement and shareholder acknowledgment
and agreement that TRC and its shareholders signed with Crystal Financial placed significant
restrictions on TRC’s income flow and the ability of its shareholders to receive any distributions,
dividends, or other cash payments. Although the parties presented the court with competing
views about the financial future of the company, the trial court chose to lend more weight to
Husband’s evidence. A judgment is not against the manifest weight of the evidence simply
because the trier of fact chose to believe one version of the evidence over another. See Donovan
v. Donovan, 9th Dist. Lorain No. 11CA010072, 2012-Ohio-3521, ¶ 18.
{¶25} Wife has not shown that the trial court erred when it ultimately concluded that
TRC was experiencing financial difficulties and that those difficulties affected Husband’s
interests in the company. Consequently, she has not shown that she was prejudiced by the
court’s erroneous reference to TRC’s financial difficulties beginning in 2009. See Ulinski at ¶
29. Wife’s second assignment of error is overruled.
{¶26} Wife’s remaining assignments of error all relate to her desire to receive a cash
payment for her 50% interest in Husband’s shares, options, and promissory notes rather than an
in-kind distribution. She argues that the court erred by not valuing the shares/options, by not
valuing the notes at face value, and by not ordering TRC to repurchase half of Husband shares
and options. As previously set forth, in equitably dividing marital property, economic
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disentanglement is preferable, but “doing so is not possible in all cases.” Daniel, 139 Ohio St. 3d
275, 2014-Ohio-1161, at ¶ 13. In cases where it is not possible to divide the assets so as to
“disassociate the parties from one another[,] * * * trial courts must exercise their fullest
discretion.” Hoyt, 53 Ohio St. 3d at 182-183.
{¶27} The parties here agreed that Wife was entitled to half of Husband’s interests in
TRC. They could not agree, however, on the value of Husband’s interests or the manner in
which Wife would receive her half-interest. Even valuing Husband’s notes, shares, and options
at the lowest values presented, however, the evidence was such that they were the largest marital
asset to be divided. In accordance with the evidence produced at trial, the court determined that
Husband did not have sufficient liquid assets to retain his interests in TRC while compensating
Wife for her one-half interest. It also identified several other points of concern in the division of
the shares, options, and notes.
{¶28} First, there was evidence that TRC’s closed-corporation agreement did not require
the company to repurchase shares in the event of an involuntary transfer. The closed-corporation
agreement made a repurchase optional, at the discretion of the company. Husband presented
evidence that he specifically asked the company before trial to repurchase half of his shares, and
the company declined. Accordingly, any order by the trial court to force TRC to repurchase one-
half of Husband’s shares would have been an order in violation of the company’s closed-
corporation agreement.
{¶29} Second, there was evidence that Husband’s shares, options, and notes were
encumbered by virtue of the agreements that he and TRC had signed with Crystal Financial. The
shareholder acknowledgement and agreement that TRC’s shareholders signed with the bank
prohibited outright the repurchasing of any transferred shares and the distribution of any cash
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payments or dividends in excess of tax liabilities. There was testimony that the agreement with
Crystal Financial would remain in place until TRC could secure the means to repay the loan as
well as a facility extension fee that could range from $4 million to $20 million. Accordingly, if
TRC repurchased one-half of Husband’s shares before its agreements with Crystal Financial
concluded, it and its shareholders would be violating the terms of those agreements.
{¶30} Third, there was evidence that TRC faced an uncertain financial future. Several
witnesses described TRC as being in a precarious financial position. It was unclear at what point
in time, if ever, TRC’s shareholders would be able to recover the money due on the promissory
notes they received from TRC. Moreover, Husband owned more than simply a nominal number
of shares and options in the company. Husband was the company’s second-largest shareholder
and, if the court were to accept Wife’s valuations of his interests, the cost of repurchasing one-
half of his interest would be significant. Although Wife argues that she was entitled to the value
of her half of the shares and options “regardless of whether [TRC] suffered a business reversal
that reduced its profitability or value,” it was the trial court’s duty to divide Husband’s interest in
the manner “most appropriate to preserve the * * * asset so that each party [might] derive the
most benefit.” Hoyt, 53 Ohio St. 3d at 181.
{¶31} We find the instant matter analogous to the case of DeMarco v. DeMarco, 10th
Dist. Franklin No. 09AP-405, 2010-Ohio-445. In DeMarco, divorcing parties jointly owned
interests in several entities and, rather than making a distributive award, the court awarded them
each half of the marital shares in the entities. See DeMarco at ¶ 4-5. In reviewing the trial
court’s decision to split the shares, the Tenth District noted that there were not sufficient assets in
the marital estate to compensate the wife for her shares and there was no evidence that the
husband could raise the funds to do so. Id. at ¶ 14. It further noted that “either [the husband] or
15
the companies still owe[d] significant sums to several individuals, thereby rendering it even less
likely that [he] or the companies [could] generate income to pay [the wife].” Id. The Tenth
District concluded that the trial court acted within its sound discretion when it ordered a division
of the parties’ shares in the company rather than a distributive award. Id. at ¶ 17.
{¶32} The trial court here, in attempting to equally divide the parties’ marital property,
exercised its discretion and ordered a 50% division of Husband’s shares, options, and promissory
notes rather than selecting an alternative that either would not have been feasible or would have
caused Husband and/or TRC to breach one or more of their agreements with Crystal Financial.
Much like DeMarco, there were not sufficient assets left in the parties’ marital estate to
otherwise equalize the division of their marital assets. See id. at ¶ 14-17. Moreover, there was
evidence that Husband’s interests in TRC were dependent upon the company’s ability to profit in
the future and emerge from the financial restrictions to which it was bound. See id. Having
reviewed the record, we cannot conclude that the court acted in an unreasonable, arbitrary, or
unconscionable matter when it determined that a 50/50 split of Husband’s interests in TRC was
the only viable option in this matter. As such, we reject Wife’s arguments that the court erred by
not valuing the shares/options, by not valuing the notes at face value, and by not ordering TRC to
repurchase half of Husband’s shares and options. Wife’s second, third, fourth, and fifth
assignments of error are overruled.
III.
{¶33} Wife’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JORGE L. PLA and NADIA R. ZAIEM, Attorneys at Law, for Appellant.
KATHRYN A. BELFANCE and TODD A. MAZZOLA, Attorneys at Law, for Appellee.
BRIAN J. KELLY, Attorney at Law, for Appellee.